The plain English movement has been going on for a long time. The first law reports in England, The Year Books (1260 to 1535), were all in the French language. Legal texts were published in England in the French language in the 16th century. But French was not the language of the people and it took a long time to get the courts to use English rather than French or Latin.

“After 1704 all reports are in English” – see The Language of the Law by David Mellinkoff, page 130.

David Mellinkoff’s book, published in 1963, is credited with starting the plain English movement in American law. The book presents a scholarly treatment of legal language from its earliest days until the 1970s. Doublets were common, such as, last will and testament. The word for child could be “minor” (latin) or “infant” (French) or “child” (English).

Mellinkoff’s book is over 500 pages. Here at Maritime Law Book we have used a book of less than 100 pages titled Plain English for Lawyers by Richard Wydick. The book is now in its 5th edition. Our editors, when writing a headnote, attempt to apply the rules stated by Wydick. Some of the rules are:

Omit surplus words, do not use redundant legal phrases;

use the active voice, judges decide, defendants pay;

avoid nominalizations, turning a verb into a noun, use the word conclude rather than they draw conclusions;

use short sentences, long sentences make legal writing hard to understand;

arrange words with care, put modifying words close to what they modify;

use familiar words, Aristotle said “clearness is secured by using words that are current and ordinary”; and

do not use legal phrases such as whereas, res justae, and hereafter.

The Legal Writing Institute, a non-profit organization, stated that Plain English for Lawyers,

has become a classic. Perhaps no single work has done more to improve the writing of lawyers and law students and to promote the modern trend toward a clear, plain style of legal writing.

Applying Wydick’s few simple rules is not easy.

Wisdom goes arm in arm with simplicity. The keen mind is one that can absorb a complicated problem, then state it in simple direct terms that will transfer the idea quickly and accurately to the minds of others. To put complicated ideas in simple language is not child’s work.
(See The Technique of Clear Writing (1968) by Robert Gunning.)

Gunning states that books that are popular best sellers use short sentences and use very few words of three syllables or more.

A law report editor reading a judicial decision is trying to determine the issues in the case and how they were decided. Such work is difficult when the issues are intermingled and the language is not clear. Sometimes judges write long sentences which must be carefully read and re-read.

I believe that the application of Wydick’s rules creates objective standards for clear writing.

Comments

I am a big fan of Wydick. I used the then-current version of his book when I taught legal drafting at the U of T law school in the late 90s.

It’s not just about short sentences, but short sentences have the virtue of avoiding or exposing other structural problems, like clauses that don’t hang together. It’s harder to get lost in one’s thought if one has to stop frequently.

Surveys of judges show that they like reading clear rather than convoluted text, too. Surprise!

Two arguments for the ‘old’ ways, one more valid than the other:

* The old wording – from those 19th if not 18th century precedents – has been judicially reviewed so its meaning is clear. This is not as certain as one might hope. It does take work to write things clearly, and to know with certainty that it is safe to cut out some of the apparently obsolete language or synonyms.

* Using the old printed forms had the advantage that once one knew them, one didn’t have to spend time reading them closely in every transaction. One could just look at the amendments written into them. But when law firms all started using their forms printed out (or emailed out) from their own computers, then one has to read them all carefully every time, to see if anything has been changed. It was faster and thus cheaper to rely on the old Dye & Durham or Newsome & Gilbert or Grand & Toy forms that one had seen dozens or more times before.

But plain English wins every time, anyway. There are scads of studies of how much money is saved by anyone who has to process a form, when the forms are comprehensible and user-friendly. Way fewer mistakes, way fewer ‘please do again’ requests.

There are various ‘readability’ indexes (not indices, I would say) available to calculate sentence length, word length, Latin vs English roots, and weight them for a result – which may be stated as a school grade-level comprehensibility. All subject to some debate, which lawyers are good at.

Though I support ‘plain English’, I am very hesitant about the idea of requiring its use by law. Its meaning is not clear enough, and statutes and regulations should not require documents (including themselves) to meet a particular grade level on such an index.

1. Read “How to Write Plain English: A Book for Lawyers and Consumers,” by Rudolf Franz Flesch, 1979.

2. In Microsoft Word and in spelling and grammar, turn on the option to show readability statistics.

Flesch invented a good score to check readability. The Word option uses the score. For plain language, you want the score to be over 60.

We need an objective score, because we naturally think that we write well. Eric Appleby’s article got a good score of 65.

The score doesn’t check meaning. Your writing must still make sense. But, in writing plainly, we’re often also making more sense. Writing often isn’t plain, because the writer isn’t sure what the writer means.

Mark Twain may have said, “I didn’t have time to write a short letter, so I wrote a long one instead.” This may partly explain why lawyers often don’t write plainly.

When I was writing a policy studies doctoral dissertation, I mentioned “plain meaning”, a notion of which I remain much enamoured and that I consider to be a close cousin of “plain English” and was questioned by my advisor on what “plain meaning” meant, a scholar who was fond of saying of various ideas “It will work in practice but will it work in theory?”.

I found two interesting discussions on which I could draw to answer his question. The earliest was from the Mishnah, the core of the Jewish Oral Law published about 214 C.E. The second was a decision of the SCC in a case called Will-Kare Paving that hung, in part, on the meaning of the word “sale”. What I noticed was that, not only in that case, in which Major J. pointed to the flaw in the CRA’s argument but in numerous other cases as I read further, how much the Court preferred plain meanings, and presumably then, plain English (or French). The CRA had argued that since Will-Kare only sold a portion of the paving material it produced to other paving companies it was not entitled to the then recent tax deduction for manufacturers. Major J., writing for the Court, said that he had considered the discussion of the section at issue in Hansard and in its common use amongst people engaged in buying and selling in the market place.

In its plain meaning, the Court could find no basis for the CRA interpretation and so far as the CRA preferred a more esoteric meaning of the word “sale” they had no basis either in the Tax Act or in the market place. I mention this because I have since found a number of government departments that are particularly well disposed to esoteric meanings, often based on convoluted English. If one could calculate all the cases in which the Court had to choose between straightforward and concrete language and something more esoteric and convoluted, I wonder how often the more esoteric renditions would emanate from the Justice Department on behalf of various Crown agencies and how often from “ordinary Canadians”.

My contracts prof Stephen Waddams once told us that if you see something written in Latin in a judgment, it’s usually because it doesn’t look very good when written in plain English. And if it doesn’t look very good when written in plain English, then it probably isn’t much good at all. (he was talking about the non est factum doctrine)

I don’t think government departments – or anyone else, really – make particular efforts to come up with unusual or convoluted meanings for words and phrases. Some of the difficulty may arise with statutes that do not say everything that the policy makers may intend – intentionally (which would be unethical, but no doubt it happens for political reasons) or unintentionally.

So when facts arise that were not anticipated at the time of drafting, it may require some effort to squeeze them into the language that was used to express the policy that ‘should’ apply to them. I suspect that’s what happened in the SCC tax case that Mickey refers to. Of course sometimes the words just can’t be stretched to fit the facts of the case, and the policy objectives are not attained, or the policy is determined to fall short of what its makers had hoped to achieve by it.

As for Latin, there is a fair debate about whether it’s just convenient shorthand or whether it is intended to cover inadequate reasoning. To some extent it depends on the audience. Like any other form of jargon, sometimes it is a way of conveying an idea quickly to those familiar with it. Non est factum is such a term, in my view. So is ‘consideration’ in relation to a contract, or per stirpes in relation to a will. In other words, such terms can be Latin or English or something else (legal French, such as ‘en ventre sa mère’?).

If one is writing for readers not trained in law or otherwise familiar with the area, then one should not use the terms, or one should define them when they first come up.

I do agree with Professor Waddams that some uses of Latin can be way of hiding shortcomings. Orwell says the same about non-plain English in political speech. No Latin is required.

While I agree with David C’s latest post that it can take time and effort to be sure that a new and ‘plain’ phrasing means the same as an old and convoluted one, and clients may not be willing to pay for that time and effort, I submit that these occasions arise much less frequently than some lawyers claim.

Generally speaking, one is better off with an attempt to state a proposition plainly in contemporary language. One can use the precedent books as checklists.

Clients, other lawyers and judges will be pleased with the result in far more cases than when something critical turns out to have been changed or omitted unintentionally. (I remember professionally educated clients of mine expressing surprise – and pleasure – that they could understand the lease I prepared for their new office.)

Another drawback of using the old precedents is that they can make a drafter think that the 19th (often earlier) century phrasing is how law ought to sound. Thus we see contracts written today with obsolete tense sequences (e.g. ‘when the purchaser shall have done X’) and many layers of compound clauses, and subjects of sentences separated from their objects by lines of dense prose. There is a risk of getting lost in the verbiage, particularly since one does not get much practice in this density in non-law life.

People who like reading this kind of stuff will enjoy Gibbon’s Decline and Fall of the Roman Empire – it’s a serious mental exercise for a 21-st century reader (well, it was still the 20th century when I last read it), but Gibbons pulls it off. In other words, his complex constructions are well built. The same cannot be said for all legal precedents drafted by Gibbons’ contemporaries and still in 21st century use, much less the ones drafted today that imitate them.

The StyleWriter – plain English editing software – checks for all the issues mentioned in this article. It also has a better readability formula – the Bog Index – than that available in Word. We guarantee if you download the free trial and use it for 14 days, it will improve you as a writer.

For accuracy of readability formulas see the article published in Institute of Scientific Technical Communicators Communicator magazine reprinted at:

We guarantee if you download the free trial and use it for 14 days, it will improve you as a writer.

There’s no excuse for writing badly if software can show you how to redraft in clear, readable English.

Did you mean to assert that there may be an excuse “for writing badly” (whatever “badly” means) if the software can’t?

What will the sofware tell me about the next example. It was brillig. The slithy toves gyred and gimbled in the wabe. The borogoves were all mimsy and the mome raths outgrabe. (I have altered Carroll’s text and punctuation.) I suppose I could try the free trial, and find out myself, but that would mean downloading and installing it. However, I’m in a slothful mood.

(I said to a dinner companion, last night, that I try to say something witty on Slaw. It’s the partial homonym in the adjective describing my mood.)